Column: It's not my gun, it's free speech'

By Dahlia Lithwick and Christian Turner, Slate

Friday, November 15, 2013

The latest skirmish in the fight between the First and Second Amendments arrived this past weekend with an incident in Dallas, Texas. A group of four women, members of a post-Sandy Hook group called Moms Demand Action for Gun Sense in America, found themselves trapped inside a restaurant when a group of demonstrators from Open Carry Texas decided to stage a little something-something in the parking lot. The 40-odd members of the Open Carry group knew the gun control group was meeting at the Blue Mesa Grill, so they moseyed over and unpacked their semi-automatic rifles. The protesters posed for photographs and waited for the four MDA members to finish their meeting, until, according to ThinkProgress, “the group moved to a nearby Hooters after approximately two hours.” Police made no arrests because, according to their spokeswoman, “There were no issues that we are aware of. Texas law does not prohibit the carrying of long guns.”

Whether the OCT members, including children, posed menacingly or lovingly with their military weapons remains in some dispute. Also in dispute is whether someone from MDA came out and interacted with the 40 gun-rights protesters (MDA says they did not and OCT is not certain). Undisputed is that the four women inside the restaurant were extremely frightened. Arguably, 40 people loitering in a suburban parking lot wielding shotguns, hunting rifles, AR-15s, and AK-47s can be intimidating.

MDA released a statement describing OCT as “gun bullies” who “disagree[d] with our goal of changing America’s gun laws and policies to protect our children and families.” Open Carry Texas sent MDA an email that read, “People are ‘getting used’ to seeing and being around guns and police have come to accept it and don’t even question us anymore. What we are doing is working and society is coming to view the sight of ‘military style rifles’ in public as just another normal thing. Isn’t that a good thing?”

Whether open-carry counter-demonstrations are a good thing, they are assuredly a thing. Opponents of gun control strap on weapons and parade around to prove that parading around with weapons is constitutional and that they have a First Amendment right to say so. They increasingly target other meetings for these demonstrations. Open-carry advocates demonstrated at an MDA event in Indianapolis last spring and at a Let’s Roll America event on the Texas capitol grounds last month. This goes beyond the open-carry demonstration at the site of John F. Kennedy’s assassination in Dallas or the open-carry protest at the Alamo in October. What we are seeing is new: These are demonstrations that target gun-control activists at their meetings and demonstrations that attempt to provoke the police into responding. By that definition they are expressive First Amendment activity. The question is whether that activity can and should be limited.

Writing at Forbes, Rick Ungar highlights one problem with the OCT argument: “While Texas permits licensed gun owners to carry concealed weapons, Texas does not permit the open carry of guns except for long guns that are not being used in a menacing way.” In other words, Texas permits the carrying of long guns in public. However the Texas penal code also provides, under its definition of disorderly conduct, that “a person commits an offense if he intentionally or knowingly . . . displays a firearm or other deadly weapon in a public place in a manner calculated to alarm.”

But according to OCT, they are neither intentionally nor knowingly attempting to cause alarm. They argue that intimidation is not a problem because “we are very clear that our objective is to educate, not alarm. In other words, we are only KNOWINGLY and INTENTIONALLY engaging in conduct meant to raise awareness and educate.” In their view, what they are doing is pure speech. If bystanders opt to be alarmed by it, well, that’s their problem. As OCT says on its website, its main purpose is to communicate. They seek only to “educate Texans about their right to openly carry rifles and shotguns in a safe manner” and to “condition Texans to feel safe around law-abiding citizens that choose to carry them.” It’s like Schoolhouse Rock for the Charlton Heston contingent.

Of course, the argument itself is completely circular. OCT is clear about the fact that they may have to cause some alarm in the short term, in order to achieve their long-term objective of building an America in which suburban sidewalks teeming with semi-automatic weapons seem normal. But if we take them at face value, it’s clear the wearing of long guns here is not for protection or hunting, but is, in their view an expressive activity protected under the First Amendment.

The question is whether carrying a gun in a demonstration is the same kind of political speech as talking about gun rights is. We all know that even ordinary speech is usually open to interpretation. The messages carried by communicative acts are often even more difficult to pin down. Is the burning of an American flag an “inarticulate grunt or roar” communicating little more than hostility, as former Chief Justice William Rehnquist once put it, or is it “overtly political” speech expressing in the strongest terms opposition to Ronald Reagan’s renomination, as Justice William Brennan held? Burning a draft card could have stood for opposition to the Vietnam War generally, to involuntary service, or to the racial and economic unfairness of the selective service system. And what to make of a lead-footed dissident, getting the word out about oppressive speed-limit laws by hurtling down the nation’s highways at 100 miles per hour? Is that speech too?

If it communicates anything, carrying a gun in public tells bystanders that the carrier is prepared to kill someone. It may say more. It may not be intended to say that the carrier wants to kill someone or that the carrier will kill someone who is not a bad guy or that the carrier will use the gun even if confronted by a bad guy. (Although, as Duncan Black has pointed out, “[o]ne significant identifier of ‘the bad guy’ is that he’s the one with the gun.” That’s what seeing a gun openly in the hands of someone who is not a police officer has come to mean to many of us.)

Gun-toting protesters of course claim that their speech is not about preparedness to kill but about changing that cultural reading: to show that good guys (and their children!) carry guns; that seeing a gun does not mean that someone is about to be shot; that you too can carry a gun in this way; that it’s your inalienable right to do so! The problem is that carrying a gun only says all these things if it also says that the carrier is prepared to kill someone. What open carriers hope to normalize, then, what they hope we all come to accept, is that having instant access to the means to kill is not a scary thing.

To which we say: Good luck with that.

Given how many people die every year as a result of gun violence, reasonable observers can’t differentiate between the AK-47 being brandished for lethal purposes and the one being brandished to celebrate freedom and self-reliance. That’s why reasonable observers tend to feel intimidated and call the cops. Maybe we should paint all the beloved assault weapons lavender? That would go a long way toward diffusing the alarm. The members of OCT genuinely don’t see themselves as having been intimidating to the four women they followed to a restaurant. They see themselves as the victims of these four women. They are unlikely to garner a lot of support for that proposition, however. The problem one runs into, when performing Speech Acts With Semi-Automatic Weapons, is that it’s unlikely your audience will feel less threatened just because you berate them for being idiots for being afraid. Whether the open-carry folks accept it or not, assault weapons are more than just extra-large earrings.

OCT and other gun-carrying protesters tell us their purpose is not to intimidate. They don’t want us to be afraid of them. We just need to better understand what they’re trying to say. Let’s give them that. They are not like cross-burning Klansmen seeking to intimidate a class of victims. But they should give us this in return: Even if we take them at their word, people on the receiving end of a protest that uses military weapons as megaphones are intimidated. Perhaps these people labor under the misconception that guns and heated political debates don’t mix well. But perhaps they are also in reasonable fear of armed people who have arrived on the scene specifically to show passionate disapproval of their cause.